UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

BARRY A. ORMOND,

Appellant,

v.

DEPARTMENT OF JUSTICE,

Agency.

DOCKET NUMBER

DC-3443-14-0179-I-1

DATE: October 21, 2014

THIS FINAL ORDER IS NONPRECEDENTIAL1

Barry A. Ormond, Chesterfield, Virginia, pro se.

John T. LeMaster, Esquire, Washington, D.C., for the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Anne M. Wagner, Vice Chairman

Mark A. Robbins, Member

FINAL ORDER

¶1 The appellant has filed a petition for review of the initial decision, which 

dismissed his appeal for lack of jurisdiction. Generally, we grant petitions such 

as this one only when: the initial decision contains erroneous findings of material 

fact; the initial decision is based on an erroneous interpretation of statute or 

 1 A nonprecedential order is one that the Board has determined does not add 

significantly to the body of MSPB case law. Parties may cite nonprecedential orders, 

but such orders have no precedential value; the Board and administrative judges are not 

required to follow or distinguish them in any future decisions. In contrast, a 

precedential decision issued as an Opinion and Order has been identified by the Board 

as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2

regulation or the erroneous application of the law to the facts of the case; the 

judge’s rulings during either the course of the appeal or the initial decision were 

not consistent with required procedures or involved an abuse of discretion, and 

the resulting error affected the outcome of the case; or new and material evidence 

or legal argument is available that, despite the petitioner’s due diligence, was not 

available when the record closed. See Title 5 of the Code of Federal Regulations, 

section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this 

appeal, and based on the following points and authorities, we conclude that the 

petitioner has not established any basis under section 1201.115 for granting the 

petition for review. Therefore, we DENY the petition for review and AFFIRM 

the initial decision, which is now the Board’s final decision. 5 C.F.R. 

§ 1201.113(b). 

DISCUSSION OF ARGUMENTS ON REVIEW

¶2 The appellant, who mandatorily retired from his Human Resources 

Specialist position in April 2013, filed a Board appeal alleging that he had 

applied for numerous non-law enforcement positions within the agency, and the 

agency deemed his application for reemployment “ineligible” for processing. 

Initial Appeal File (IAF), Tab 1 at 3, 7 (retirement Standard Form 50). The 

administrative judge issued a show cause order in which she explained that the 

Board may not have jurisdiction over the appeal and ordered the appellant to 

provide evidence and argument concerning the Board’s jurisdiction over his 

appeal. IAF, Tab 3. The appellant filed a response identifying 5 C.F.R. 

§§ 1201.3(a)(2), (7) and other statutes and regulations as sources of the Board’s 

jurisdiction and alleging that the agency committed age discrimination and 

prohibited personnel practices. IAF, Tab 5. The administrative judge issued an 

initial decision dismissing the appeal for lack of jurisdiction. IAF, Tab 8, Initial 

Decision (ID). The administrative judge noted that the appellant also

cited 5 C.F.R. § 1201.3(a)(7), which discusses employment practices appeals, but 
3

deemed it unclear whether the appellant was arguing that the Board has 

jurisdiction over the appeal on this basis. She therefore directed him to file a 

separate employment practices appeal if he intended to make such a claim. ID at 

3 n.*. 2

 The appellant has filed a petition for review, but the agency has not filed

a response. Petition for Review (PFR) File, Tab 1. 

¶3 On review, the appellant reiterates his argument that the Board has 

jurisdiction over the appeal, asserts that he was improperly barred from 

reemployment, and argues that this case is a “Mixed Complaint.” Id. He also 

asserts that the administrative judge did not return his calls or notify the Office of 

Personnel Management about the issues in this appeal. Id. The appellant 

includes with his petition his email correspondence with various agency 

representatives and an equal employment opportunity counselor, and he also 

provides what he calls “Department of Commerce [Law Enforcement Officer] 

Information.” See PFR File, Tab 1, Attachments. 

¶4 The Board’s jurisdiction is not plenary; it is limited to those matters over 

which it has been given jurisdiction by law, rule or regulation. Maddox v. Merit 

Systems Protection Board, 759 F.2d 9, 10 (Fed. Cir. 1985). Generally, an 

unsuccessful candidate for a federal civil service position has no right to appeal 

his nonselection. Tines v. Department of the Air Force, 56 M.S.P.R. 90, 93 

(1992). The appellant’s petition for review does not persuade us that the 

administrative judge erred or that the Board has jurisdiction over the 

nonselections at issue in this matter. Indeed, we note that the regulation 

at 5 C.F.R. § 1201.3(a)(2) states that the Board has jurisdiction over retirement 

appeals, but the agency’s decision not to select the appellant for the vacancies in 

question does not appear to involve a determination affecting the rights or 

interests of an individual under the Federal retirement laws as prescribed therein. 

 2 The appellant did not subsequently file an employment practices appeal. It appears, 

however, that the appellant has an individual right of action appeal currently pending 

with the regional office after remand. See Ormond v. Department of Justice, MSPB 

Docket No. DC-1221-11-0860-B-4.
4

The appellant’s citation to 5 C.F.R. § 831.909, PFR File, Tab 1 at 12-13, which 

states that an employee who has been mandatorily separated under 5 U.S.C. 

§ 8335(b) is not barred from reemployment in any position except a primary 

position after age 60, does not change the outcome because there is no evidence 

that the appellant was barred from reemployment. To the contrary, the appellant 

was apparently found “[q]ualified and referred with the Exception group” for one 

of the vacancies. See IAF, Tab 5 at 15. Other vacancies were apparently limited 

to certain current, surplus, and/or displaced employees, see id. at 18, 21-22, and 

the appellant did not fall into any of these categories because of his 

mandatorily-retired status. Because the Board lacks jurisdiction over the appeal, 

it also lacks jurisdiction to hear the appellant’s claims of age discrimination and 

prohibited personnel practices. See Wren v. Department of the Army, 2 M.S.P.R. 

1, 2 (1980) (prohibited personnel practices under 5 U.S.C. § 2302(b) are not an 

independent source of Board jurisdiction), aff’d, 681 F.2d 867, 871-73 (D.C. Cir. 

1982).

¶5 We disagree with the appellant’s contention that this case is a mixed case. 

Indeed, in Cunningham v. Department of the Army, 119 M.S.P.R. 147, ¶¶ 13-14 

(2013), the Board held that appeals of matters outside the Board’s jurisdiction do 

not qualify as mixed cases even if they involve covered discrimination claims. 

We have also considered the appellant’s remaining arguments on review, but they 

do not warrant a different outcome.

¶6 Finally, we have considered the documentation submitted on petition for 

review. Under 5 C.F.R. § 1201.115, the Board generally will not consider 

evidence submitted for the first time with the petition for review absent a showing 

that it was unavailable before the record was closed despite the party’s due 

diligence. Avansino v. U.S. Postal Service, 3 M.S.P.R. 211, 214 (1980). The 

appellant has not made such a showing. Even if such evidence could be 

considered “new” evidence, this documentation does not persuade us that the 

Board has jurisdiction over the appeal.
5

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

You have the right to request review of this final decision by the United 

States Court of Appeals for the Federal Circuit. You must submit your request to 

the court at the following address:

United States Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, DC 20439

The court must receive your request for review no later than 60 calendar 

days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec. 

27, 2012). If you choose to file, be very careful to file on time. The court has 

held that normally it does not have the authority to waive this statutory deadline 

and that filings that do not comply with the deadline must be dismissed. See 

Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).

If you need further information about your right to appeal this decision to 

court, you should refer to the federal law that gives you this right. It is found in 

Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff. 

Dec. 27, 2012). You may read this law as well as other sections of the United 

States Code, at our website, http://www.mspb.gov/appeals/uscode.htm. 

Additional information is available at the court's website, www.cafc.uscourts.gov. 

Of particular relevance is the court's "Guide for Pro Se Petitioners and 

Appellants," which is contained within the court's Rules of Practice, and Forms 5, 

6, and 11.

If you are interested in securing pro bono representation for your court 

appeal, you may visit our website at http://www.mspb.gov/probono for a list of 

attorneys who have expressed interest in providing pro bono representation for 

Merit Systems Protection Board appellants before the court. The Merit Systems
6

Protection Board neither endorses the services provided by any attorney nor 

warrants that any attorney will accept representation in a given case. 

FOR THE BOARD:

Washington, D.C.

______________________________

William D. Spencer

Clerk of the Board